Nishant Executive HR - DENSO INDIA LTD.

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MATERNITY BENEFITS ACT 1961

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DEFINITION

An Act to regulate the employment of women in certain establishment for certain period before and after child-birth and to provide for maternity benefit and certain other benefits.

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SECTION 1. Short title, extend and commencement

This Act may be called the Maternity Benefit Act, 1961

It extends to the whole of India

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SECTION 2. Application of Act

It applies in the first instance, to every establishment being a factory, mine or plantation

shall apply to any factory or other establishment to which the provisions of the Employees State Insurance Act, 1948 (84 of 1948), apply for the time being

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SECTION 3. Definitions

(a) “appropriate Government” means in relation to an establishment being a mine 7[or an establishment where persons are employed for the exhibition of equestrian, acrobatic and other performances], the Central Government and in relation to any other establishment, the State Government

(b) “child” includes a still-born child

(c) “delivery” means the birth of a child

(d) “employer” means –(i) in relation to an establishment which is under the control of the

Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(ii) in relation to an establishment which is under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iii) in any other case, the person who are the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person

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SECTION 3. Definitions

(e) “establishment” means(i) a factory;(ii) a mine;(iii) a plantation;(iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatics and other performances; or(v) an establishment to which the provisions of this Act have been declared under sub-section (4) of section 2 to be applicable

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SECTION 3. Definitions

(f) “factory” means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948)

(g) “Inspector” means an Inspector appointed under section 14

(h) “maternity benefit” means the payment refereed to in sub-section (1) of section 5

(i) “mine” means a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952)

(j) “miscarriage” means expulsion of the contents of a pregnant uterus at ay period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage the causing of which ins punishable under the Indian Penal Code (45 of 1860)

(k) “plantation” means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951)

(l) “prescribed” means prescribed by rules made under this Act

(m) “State Government” in relation to a Union territory, means the Administrator thereof

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SECTION 3. Definitions

(n) “wages” means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes –(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to;(2) incentive bonus; and(3) the money value of the concessional supply of foodgrains and other articles,

but does not include –(i) any bonus other than incentive bonus;(ii) overtime earnings and any deduction or payment made on account of fines;(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and(iv) any gratuity payable on the termination of service;

(o) “woman” means a woman employed, whether directly or through any agency, for wages in any establishment

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SECTION 4. Employment of, or work by, women prohibited during certain period. (1) No employer shall knowingly employ a woman in any establishment during the six

weeks immediately following the day of her delivery or her miscarriage.

(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery of her miscarriage.

(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.

(4) The period referred to in sub-section (3) shall be –(a) at the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

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SECTION 5. Right to payment of maternity benefit. (1) Subject to the provisions of this Act, every woman shall be entitled to,

and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day. Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death

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SECTION 6. Notice of claim for maternity benefit and payment thereof (1) Any woman employed in an establishment and

entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

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SECTION 6. Notice of claim for maternity benefit and payment thereof 3) Any woman who has not given the notice when she was pregnant may give such

notice as soon as possible after the delivery.

(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery.

(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order

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SECTION 7. Payment or maternity benefit in case of death of a woman

If a woman entitled tomaternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative

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SECTION 8. Payment of medical bonus

Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge

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SECTION 9. Leave for miscarriage

In case of miscarriage, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of six weeks immediately following the day of her miscarriage

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SECTION 10. Leave for illness arising out of pregnancy, delivery, premature birth of child, ormiscarriage

A woman suffering illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall, on production of such proof as may be prescribed, be entitled in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month

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SECTION 11. Nursing breaks

Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months

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SECTION 12. Dismissal during absence or pregnancy (1) Where a woman absents herself from work in accordance with the provisions of

this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

(2)(a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge of dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus: Provided that where the dismissal is for any prescribed gross misconduct the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.(b) Any woman deprived of maternity benefit or medical bonus or both may, within sixty days from the date on which the order of such deprivation is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefits or medical bonus or both, shall be final.(c) Nothing contained in this sub-section shall affect the provisions contained in subsection (1).

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SECTION 14. Appointment of Inspectors

The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to by Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their function under this Act.

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SECTION 15. Powers and duties of Inspectors. An Inspector may, subject to such restrictions or conditions as may be prescribed,

exercise all or any of the following powers, namely: -

(a) enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes or examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection

(b) examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself

(c) require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received form them under this Act; and

(d) take copies of any registers and records or notices or any portions thereof

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SECTION 16. Inspectors to be public servants

Every Inspector appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860)

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SECTION 17. Power of Inspector to direct payments to be made (1) Any woman claiming that maternity benefit or any other amount to which she is

entitled under this Act and any person claiming that payment due under section 7 has been improperly withheld, may make a complaint to the inspector.

(2) The Inspector may, of his own motion or on receipt of a complaint referred to in subsection (1), make an enquiry or cause an inquiry to be made and if satisfied that payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders.

(3) Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such person, appeal to the prescribed authority.

(4) The decision of the prescribed authority where an appeal has been preferred to it under sub-section (3) or of the Inspector where no such appeal has been preferred, shall be final.

(5) Any amount payable under these sections shall be recoverable as an arrear of lane revenue

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SECTION 18. Forfeiture of maternity benefit

If a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorized absence, he shall forfeit her claim to the maternity benefit for such period.

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SECTION 19. Abstracts of Act and rules there under to be exhibited

An abstract of the provisions of this Act and the rules made there under in the language or languages of the locality shall be exhibited I a conspicuous place by the employer in every part of the establishment in which women are employed.

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SECTION 20. Registers, etc

Every employer shall prepare and maintain such registers, records and muster-rolls and in such manner as may be prescribed

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SECTION 21. Penalty for contravention of Act by employers. If any employer contravenes the provisions of

this Act or the rules made there under he shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both; and where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall in addition recover such maternity benefit or amount as if it were a fine, and pay the same to the person entitled thereto.

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SECTION 22. Penalty for obstructing Inspector

Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made there under or conceals or prevents any person from appearing before or being examined by an Inspector, shall be punishable with imprisonment which ma extend to three months, or with fine which may extend to five hundred rupees or with both.

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SECTION 23. Cognizance of offences

(1) No prosecution for an offence punishable under this Act or any rule made there under shall be instituted after the expiry of one year from the date on which the offence is alleged to have been committed and no such prosecution shall be instituted except by, or with the previous sanction of, the Inspector; Provided that in computing the period of one year aforesaid, the time, if any, taken for the purpose of obtaining such previous sanction shall be excluded.

(2) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence

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SECTION 24. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made there under

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SECTION 25. Power of Central Government to give directions

The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution the provisions of this Act and the State Government shall comply with such directions

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SECTION 26. Power to exempt establishments

If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefit which are not less favorable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt subject to such conditions and restrictions, if any, as may be specified in the notifications, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made there under

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